Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing

from the fair-use,-learn-it,-love-it dept

To Silvie van Etten:

Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences. First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law. In fact, it leads one to wonder if you even read the post in question before sending your letter.

Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false. It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called "Copyfraud" by legal scholar Jason Mazzone.

While you appear to be in Germany, I note that Human Synergistics International is actually based in the US. We, too, are a US company, with US servers, targeting a mostly US audience. As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism. According to your LinkedIn page, your law degree is from the somewhat infamous Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular. While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours. As such, we reject your claim that we have violated your copyrights as well as your request to remove the quoted sections from our blog. When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding.

Our use is fair use and not infringing. While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law. Looking over those four factors, our use is without a doubt fair use.

The first factor is the "purpose and character of the use." Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three. We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise. We further commented on the matter, using the text in particular to show why your original claim of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds. Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event.

Furthermore, courts will often look at whether or not the use is "in the public interest" (see Online Policy Group v. Diebold). Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with. Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair. In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text. This, too, supports the fair use argument.

Courts also explore whether or not the use is "transformative," (see: Cambell v. Acuff-Rose). Once again, the answer is a resounding yes. At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transformatively different from the purpose you appear to envision for the text.

The second fair use factor is "the nature of the copyrighted works." Again, this prong supports our claim that the use is fair and not infringing. Our original post talked about how your company appears to abuse the purpose and the letter of copyright law to threaten and bully anyone who quotes a very tiny portion of a common "group training" exercise, involving stranded travelers and a small list of items which need to be prioritized for travel and survival. As we noted in our original post, there are a variety of similar exercises, all based on the same premise. That, alone, suggests that the short description of the exercise -- consisting of 4 sentences and 64 words -- has, at most, only weak copyright protection on the few new creative elements. Furthermore, the "list" of items is, not unlike a "recipe," merely a list of facts and, for the most part, not copyrightable under US law. Finally, part of the text that you ask us to delete is, in fact, something that we wrote, "she then lists out the items," rather than something from the text you claim copyright over.

The third factor is "the amount and substantiality of the portion used." Here, again, it supports that our use -- the tiny segment of the exercise that was quoted in our blog post -- is fair. As anyone who has done one of these exercises knows full well, the point of the exercise is not the 4 sentence description, nor the list of items, but the actual group prioritization effort, combined with the "expert" prioritization that is often revealed at the end of the exercise in addition to various explanations of what the exercise means / what participants should have learned. Since the amount that we copied was such a tiny part of the larger exercise, and a minor part of it, at that, this again weighs in favor of fair use. Furthermore, even if you were to argue that we somehow did use a substantial portion, your argument would fail. As the Supreme Court makes clear in Harper & Row, Publishers, Inc. v. Nation Enters, "substantial quotations might qualify as a fair use in a review of a published work or a news account." Our use clearly was a news account.

Finally, the last factor is "the effect of your use upon the potential market for the copyrighted work." It's important to note here, (again referencing back to the Campbell case) that the courts are clear here that they are not addressing whether or not the criticism harms the market, but whether or not the direct use harms the market. We freely admit that our criticism of your despicable copyright practices may lead organizations to think twice about doing business with your company. But, as the Supreme Court noted, while "a scathing theater review kills demand for the original, it does not produce a harm cognizable under the Copyright Act." In our case, the specific use of the text clearly does not harm the potential for your market, because we were not using it in a competitive manner at all. No one would read our post and use that to administer the exercise in question.

It's that last point that is the most bizarre in all of this. The original blog post, by Patti O'Shea, which we were commenting upon, said nothing negative about your organization or the exercise, which she seemed to enjoy. Most reasonable persons would actually have read it as an endorsement of the exercise itself, which would reflect well on you and could lead more people to wish to hire your organization or license the specific exercise details. Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet. In response, you received criticism from us. And, rather than change your ways, you have now dug yourself an even bigger hole by threatening us with what appears to be a clearly bogus threat. So you have gone from one mostly positive blog post to an increasing series of negative blog posts criticizing your activities.

It is unclear how that series of responses from you furthers Human Synergistics' business interests, which must be a part of your job.

Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

While I hope that this response, posted publicly on our site and sent to you directly, constitutes the end of this discussion, I have had this letter reviewed by multiple lawyers who are experts in copyright, fair use and free speech. If you wish to continue this fruitless effort, I will be happy to put you in touch directly with lawyers who will be representing us in having a court disabuse you of your misunderstanding of copyright law.

Sincerely,

Michael Masnick
CEO and Editor
Floor64 Inc. and Techdirt
To Whom It May Concern:

We respectfully request that you immediately remove the following sections: You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your plane was 70 miles off the course that was filed prior to take off and you crashed 50 miles southwest of a mining camp. You have 15 items with which to survive. Rank them from most important to least important.
She then lists out the items:
The items were: a flashlight with four batteries, big jack knife, aeronautical chart of the area, big plastic raincoat, magnetic compass, compresses and bandages, 45 caliber gun with bullets, red and white parachute, bottle of salt tablets, 1 liter of water per person, book titled “Edible Desert Animals”, pair of sunglasses per person, 1 liter bottle of alcohol (96%), light summer coat per person, makeup mirror. - from your website and discontinue any further unauthorized use, whether in electronic or hard copy form, of Human Synergistics' materials.
Human Synergistics offers a wide range of simulations, diagnostic surveys, and support materials for organizational training and development. Feel free to contact us for additional information or to purchase any of these materials.
This letter is written without prejudice to any of Human Synergistics’ rights, all of which are expressly reserved. Please acknowledge receipt of this letter via email within five (5) business days.

Finally, you should make yourself aware of the Lenz v. Universal case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law. While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.

LOL! Lenz merely says that to successfully argue misrepresentation, Mike would have to prove subjective bad faith. Good luck with that one, Mike. I'm sure they're shaking in their boots.

Re:

You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your plane was 70 miles off the course that was filed prior to take off and you crashed 50 miles southwest of a mining camp. You have 15 items with which to survive. Rank them from most important to least important.

This post needs a new title :)

In reading this post, I was quickly reminded of the old SNL with Dan Ackyroyd's line to Jane Curtin in Weekend Update's point-counterpoint segment, with a slight modification: "Human Synergistics International, you ignorant slut!" :)

Re: Re:

Mike, I'm pretty sure that if someone quoted them in a comment here on TechDirt without citing the source, TechDirt is protected under not only the Fair Use Clause in Section 512, but also under service provider protections as well....which are in Section 512, Article 10 (or 12...bit foggy there), Paragraph's A,B,C,D,E,H, and J :-)

Re: Re: Re:

Copyrighted? That? That's a mental exercise we did when I was in junior high. You have to decide what you want to take with you from the crash site in order to survive. I don't even see how that can be copyrighted.

Re: Re:

Unfortunately, they can't be nailed for perjury. The only statement that is sworn is that they own the copyright. They can own the copyright and engage in copyfraud and they have not committed perjury.

Re:

From Lenz v. Universal:One might imagine a case in which an alleged infringer uses copyrighted material in a manner that unequivocally qualifies as fair use, and in addition there is evidence that the copyright owner deliberately has invoked the DMCA not to protect its copyright but to prevent such use. See, e.g., Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204-05 (N.D.Cal.2004) (suggesting that the copyright owner sought to use the DMCA "as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property").

Going forward with a DMCA notice to silence criticism after fair use has been clearly documented sounds like just what the judge had in mind.

How about this....

You’re on a hangglider that crashed in the Sahara desert. The pilot and copilot are dead, but you and your mates are unharmed. Your plane was 50 miles off the course that was filed prior to take off and you crashed 70 miles southeast of a mining camp. You have 10 + 5 items with which to survive. Rank them from most important to least important.

Red meat for fanboys, thinking Mike has a victory!

It's basically the old sympathy ploy: "I'm under attack! Rally to me!" -- And the fanboys jump in, they're SO in need of good news these days.

So I waited, and yot, there you are, trolling the piece in absence of controversy, hoping to stir up some drama, complete with reference to me and all the people here whose opinion actually matters because isn't just "Mike's the greatest!" jingoism.

Techdirt is a little micro-cosm of the net that's interesting to study, one reason I read it. Small enough that my posts aren't lost and I can have influence -- though it's only provoking yaps from ankle-biters.

Fair use is...

Now that was a bad idea for any person or company to try and censor TechDirt when it would only end in failure and ridicule.

With that said I did spot one small mistake. The reply claimed Fair Use but then said they did not infringe their copyright. This ignores the one fact that Fair Use is correctly known as "lawful infringement". So it is correct to claim the Fair Use exception but it should have said this is not "unlawful infringement".

I just see that if someone wants to be an expert on copyright law that they should get the concepts correct.

Observation

Mike:
The sentence you use, "Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet."

'To be disappeared', wouldn't that be, 'to be erased', or 'to disappear'.

I'm not trying to nit pick here, just being observant. Your response is great. Odds are that this letter is not sent by Silvie the 'human?', but by Silvie the internet bot who is only as smart as the programmer and as flexible as a cement wall.

Re: Wow

Re: Red meat for fanboys, thinking Mike has a victory!

I don't think Mike needs to rally "fanboys." His response and his consultation with lawyers was all he needed. The publication of the issue just supports the position he's taken numerous times before about the abuse of copyright. Why wouldn't he publish it when it's a perfect example?

Does anyone think that the number of commenters who approve of the letter affects whether the company will decide to follow through with a real takedown notice? Of course not.

I love that you think that your opinion matters. You basically just stated that the only opinions that matter are those that disagree with Mike, which just proves you're a troll and nothing more and any statements you make regarding wanting an honest dialogue is hogwash.

I also love that you think your "influence" does anything other than make you (and by association, the positions you support) look desperate and pathetic.

Re: Red meat for fanboys, thinking Mike has a victory!

You really are sad and desperate if you look at this as Mike looking for sympathy. In order for that to have been the case he would have needed to look like he was in some sort of trouble. To me it more looks like a victory dance after winning a rather lopsided fight.

You might could accuse him of gloating over knocking out a greatly under matched opponent, but definitely can't see where you got the "sympathy ploy" idea from.

Re: Re:

c'mon, this is easy peasy japanesy:
you take the .45 w/bullets, shoot the others and take their stuff too, then use the jackknife to cut them up and eat them...
geez, don't those people know *anything*...

This isn't a new exercise

I've seen variants on this exercise multiple times over the last 40 years, and I doubt they were new when I first saw it. The details are different (is it a desert island as opposed to the Mexican desert, exactly what objects do you have and how many of them can you carry, etc.), but it's not like Human Synergistics Inc. invented the concept.

They were making a derivative work from other versions of the same scenario, and the important part of the exercise is the "how do you make decisions like this as a group", not the specific details of their scenario.

So it's really egregious of them to try and make a copyright claim against somebody fairly using their derivative work.

Re: Fair use is...

Re: Fair use is...

Also, from the Lenz v. Universal ruling linked in the article:

The Supreme Court also has held consistently that fair use is not infringement of a copyright. See e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) ("[a]nyone ... who makes a fair use of the work is not an infringer of the copyright with respect to such use.").

Re: Red meat for fanboys, thinking Mike has a victory!

Actually your posts are so far removed from reality that you are properly ignored by serious readers, voted down, by people you baited and laughed at by people who love the complete nonsense of unadaltered insanity!

scum

Re: This isn't a new exercise

Let's make our own derivative version:

Your company is about to commit copyfraud upon another company and your team has 5 minutes to grab whatever they can from this list of items before the internet catches wind of it and your company goes down in flames:

- Your current resumes
- The house plant on your desk
- A stapler
- A copy of your 401k plan
- A roll of toilet paper
- The number to the unemployment office
- Parking validation stamp
- Personal family photos
- The weird Burger King toy on the IT guy's desk
- That cute blonde in Accounting's phone number
- The chipped coffee cup that's now growing Penicillin

Re: Poor Bastards.

How timely! I need your help!

Hey Guys and Gals...

I'm thinking about deliberately crashing my plane in the Gobi desert. The pilot and copilot will likely die, but me and my classmates are all expected to survive unharmed. My plane will crash 70 miles off the course that was filed prior to take off and will end up 50 miles southwest of a mining camp. I will be taking 16 survival items with me. Please help me rank them from most important to least important.

A flashlight with four batteries.
A big jack knife.
An aeronautical chart of the area
A big plastic raincoat.
A magnetic compass.
Compresses and bandages.
A 45 caliber handgun with bullets.
A red and white parachute.
A bottle of salt tablets.
A one liter bottle of water per person.
A book titled "Edible Desert Animals."
A pair of sunglasses per person.
A One liter bottle of alcohol (96%).
A light summer coat per person.
A makeup mirror.
Another book titled "How to School Copyright Ignorant Businesses in the Internet Age."

Re: Red meat for fanboys, thinking Mike has a victory!

This won't work for everyone

TechDirt is a successful blog. This manner of connecting with fans only work because there is a substantial following already. For a smaller blog that doesn't have as large a fanbase established, this would never be an appropriate avenue for success.

Re: Re:

I think I'll join in :D

You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your plane was 70 miles off the course that was filed prior to take off and you crashed 50 miles southwest of a mining camp. You have 15 items with which to survive. Rank them from most important to least important.

Re: Re: Wow

blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law.

For a start masnick, you make money from this web site, therefore you profit from what is posted here.

Second, YOU are not the person who gets to decide what is FAIR USE or not..

so what now you are the judge and jury ?? as well as the criminal ??

I know you might get upset to find out that MASNICK IS NOT THE LAW, he does NOT get to choose what is fair use or not, which is a good thing, because it appears that masnick does not really understand what fair use is, or the law for that matter.

so if you are so sure it's fair use, Masnick call his bluff and take him to court.

but it's NOT UP TO YOU to decide what is or is not fair use, even a complete moron like you should be able to work that out..

once you gain a basic understanding of fair use, and who gets to determine that.. (do you let a bank robber decide if what he did was theft or a withdrawal ?)..

No masnick you can try to make the case that it is fair use, that is your right, but YOU CANNOT make that ruling yourself..

for ALL the OBVIOUS REASONS, mainly your displayed complete lack of understanding in anything related to ANYTHING,, especially copyright..

so go away Masnick, LEARN SOME FACTS and come back when you've received an education..

Re: This won't work for everyone

if there actually WAS a SUBSTANTIAL following.. but masnick has at best 10 or 15 rabid fans, not that good if you consider the years and years he has spent of his life trying to get those 10 'fans' of his LOL

Harper and Row v. Nation notwithstanding, I don't think it's entirely clear that the passage quoted qualifies for copyright protection in the first place. Not every bit of written text gets copyright protection, as the Feist case most recently makes clear.

Re: Re: Red meat for fanboys, thinking Mike has a victory!

....and when ya get wet it's a sure bet you'll get mad with your petulant mind as you try to slap the living legal Hell out of you when try to you paddle our behind. So step off Human Synergistics or it's more legal trouble that one would ever want yo have which you will definitely find.

Re:

Reading the letter was glorious, but after the joy comes this tragedy; the opposition is so mind-bogglingly idiotic that they're unfazed by even the sickest of burns.
Fortunately, while being too stupid to recognize insults will win arguments, it won't hold up in a court of law. I look forward to reading the judge's statement when he dismisses the case.

Re: Re: This won't work for everyone

Re:

darryl, darryl, darryl. You're an unimaginative little turd-twat that wouldn't know copyright infringement and fair use if they spit-roasted you. Both in the sexual sense and the culinary sense. Never mind that Masnick already advised Synergistics that if they want to, he welcomes them to drag the matter to court - or the fact that you are neither judge nor jury nor copyright expert, and you declare it's not fair use.

How's about you deal with yourself like normal, rational human beings with little shitstains, and flush yourself down the toilet?

"The Desert Survival Situation is copyrighted by Human Synergistics International, which has the exclusive right to reproduce, copy, edit, translate and otherwise exercise ownership over the material."

So, when do we start getting sued for informing someone about a topic we learned in school?

Re: Re: This won't work for everyone

Re: Re: Re:

I think I'll join in

You’re on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your classmates are a Catholic priest, a Rabbi, a Chicano, a black guy, a guy that was just released from prison, a surrealist, an 80's feminist, a Polish woman, Mel Gibson, and a melancholy horse.

You have 10 items with which to survive. Rank them from funniest to most offensive.
- a nickel
- a very inexpensive prostitute
- a car door
- a choir boy
- a vibrator
- your enormous cock
- the fish
- natural sweetener formed in the shape of female mammary glands
- (looks around before telling joke)
- "that's not funny"

Have any assets in Germany?

It's all well and good to say this, but if she files a claim in a German court and goes after those assets the US citations are pretty much moot--The German court will be plenty happy to render a decision under German law and reach a judgment enforceable against those assets in Germany (which it could do regardless of whether or not this claim would fail in the USA). And I've no idea what fair use rules are in Deutschland, but they may not be as good as they are here. That's why she didn't write a DMCA-conforming takedown by the by. Her intention would be to file over there, not here. So, before one does this sort of thing, one should look to see where one's assets are, since that's the choice of law issue that actually matters.

Re: Re: Wow

Copyfraud

... exists in Germany too, it's called (rather clumsy, because it's coined by courts, not just some lawyer) "Schutzrechtsberühmung".

And the applicable article regarding the parts quoted by techdirt would be §51:

"Allowed is the reproduction, dissemination and public rendition of a published work for the use as citation, insofar as the use in its extent is justified by its special use."
(translation by me, keeping the convoluted structure of the original).

Re: Re: This isn't a new exercise

In order of importance, I would have to rank them thus:

- Personal family photos
- Parking validation stamp
- The number to the unemployment office
- That cute blonde in Accounting's phone number
- The house plant on your desk
- A stapler
- The chipped coffee cup that's now growing Penicillin
- The weird Burger King toy on the IT guy's desk
- A copy of your 401k plan
- A roll of toilet paper
- Your current resumes

Re: Re: Re: This isn't a new exercise

Hey, "Inhuman Suckergistics InveterateMorons":

Take your "Desert Survival Situation" and shove it up your collective asses. To quote my grandmother (which quote you may not reproduce in any way shape or form, unless you wish to rush the old battleaxe digging herself out of her hole and beating you with her cane): "I wouldn't piss on y'all if your collective guts were on fire."

And I certainly will have NOTHING to do with your ghodforsaken collection of extortionist idiots. And if I find out I'm doing business with anyone who is doing business with you, I will pull the plug hard and fast, and take my business to someone who has the sense to disassociate themselves from idiots that like to abuse the law for mere profit.